Friday, 18 March 2011

Who will judge the judges?

'The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality'-- National Commission to Review the Working of the Constitution (NCRWC)

The same Commission, a judiciary-headed (the Chairman was a former Chief Justice of India), judiciary-heavy (of the 11 members, six were from the judiciary) one, continues: 'The crucial failure is the innate resistance in governments and governmental processes to the fundamental article of democracy, viz. that all power and all authority flows from the people and that all public institutions are meant solely to serve the public interest. The assurance of the dignity of the individual enshrined in the preamble of the Constitution has remained unredeemed; From this fundamental breach of the constitutional faith flow almost all our present ills.The first and the foremost need is to place the citizens of this country at center-stage and demonstrate this prioritization in all manifestation of governance'

On judiciary, it says: 'Judicial system has not been able to meet even the modest expectations of the society.Its delays and costs are frustrating, its processes slow and uncertain.People are pushed to seek recourse to extra-legal methods for relief.Trial system both on the civil and criminal side has utterly broken down.' Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice.'

Now consider this: amoung the three organs of our Constitution the law-makers are controlled by the people, bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers are also controlled by the law-makers and the judiciary. And then there are the ears and eyes of the people- the media waiting to sensationalise every news involving the misdemeanour of these authorities. Inspite of such strict supervision and control all that we can hear these days are about politician-bureaucrat-underworld nexus even though the fact remains that none, worth the name, from this unholy nexus have ever been punished by the holier-than-thou judiciary.

So now think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Well isn’t our judiciary just that? And do I need to recapitulate that quip: power corrupts and absolute power corrupts absolutely?

Nobody needs to tell the average Indian that our judges are also corrupt. (Citing a study done by Transparency International, Mr. Venkatachala, then Lokayuktha, Karnataka said that 89 per cent of the public thought that the judiciary was corrupt.) However, one former Chief Justice is on record that 20% of them are corrupt. Another came to Kerala and commented on an on going case in the High Court here. In yet another case, a former judge of a High Court filed a false affidavit before the very same court. In all these cases, had the people involved not been former judges wouldn’t they have been sent off to the coolers for contempt of court? People like Arundhati Roy have been sent there for much less reason- for the perceived absence of propriety in the language used in an affidavit! But then again the former judge of the Kerala High Court who was found to have filed a false affidavit in the Kerala High Court (Confederation of Consumer Vigilance Centre V State of Kerala, 2004 (3) KLT 1073) while heading the Kerala State Consumer Disputes Redressal Commission, continued to sit in judgement in cases involving consumers till his retirement 3 years later!

Incidently, this Contempt of Court is a great piece of law where the prosecutor, judge and hangman are all bundled into one individual! Even the NCRWC has just suggested that a proviso to article 19(2) of the Constitution should be added as under:-

"Provided that, in matters of contempt, it shall be open to the Court to permit a defence of justification by truth on satisfaction as to the bona fides of the plea and it being in public interest."

That is, as it stands, even justification by truth is NOT a defence in contempt cases! Now isn’t it time that the people of this country, with sixty years of democracy behind them, demanded replacement of this patently lop-sided legislation with a Contempt of Citizen Act? And when it comes to trying judges under laws applicable to ordinary citizens, isn’t there need for a ‘judiciary’-free institution with powers to double the quantum of punishment? Fortunately, the Third Administrative Reforms Commission, headed by Veerappa Moily, has recommended just a similar National Judicial Commission. But powerful lobbies are at work claiming that it will affect the freedom of the judiciary. But then, our Constitution provides for freedom of action in performing their tasks not only to the judiciary but to all organs and when the judiciary can intervene in matters involving them is there any reason why they can’t intervene in disciplining judges and making them accountable for their omissions and commissions? Or does checks and balances mean differently for the judiciary, from the other organs of the Constitution?

Now just consider these judgements and decide for yourself how judicious or otherwise our judges are.

In Jancy Joseph Vs Union of India (1999 (1) KLT 422) the Kerala High Court upheld part of Sec 56 of the CPC that ‘when the (consumer) forum is executing an order for recovery of money, it cannot order the arrest of a woman for recovery of the amount’ and overruled the other part- ‘regarding recovery of money from others, arrest can be ordered only if it is found that persons concerned have means to pay’- by holding that ‘the means of the judgement debtor need not be considered when the power under S-27 (of the Consumer Protection Act) is exercised for recovery of money’.

Later, in Mary Chacko Vs Jancy Joseph (2005 (3) KLT 925), a division bench headed by the then CJ of Kerala considered the issue of the applicability of the same Sec 56 of CPC while enforcing the orders under Recovery of Debts Due to Banks and Financial Institutions Act 1993 and ordered that women CAN be arrested because ‘there is a clear basis for treating the public dues different from the purely private’.

Now this is what the Preamble to the Constitution promises:

We, the People of India, having solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure to all its citizens:

- Justice, social, economic, political;

- Liberty of thought, expression, belief, faith and worship;

- Equality of status and of opportunity;

And to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of the nation;

in our Constituent Assembly this 26the day of Nov 1949, do hereby adopt, enact and give to ourselves this Constitution.

There is also this murder case where six accused were sentenced to death by the trial court and was upheld by the high court. The apex court acquitted 5 of them and reduced the sentence of one to life imprisonment! Where does that leave the subordinate courts which are also bound by the jurisprudence that not even one innocent shall be punished even if a thousand criminals are left free and also that capital punishment is to be given only in the rarest of rare cases?

And this is how the judiciary, which claims all its functions are in the public domain, has treated the Right to Information Act.

The Delhi High Court raised the application fee to Rs 500/- against the Rs 10/- charged by public authorities of the central government and most states. It also introduced a fee (of Rs 50/-) for 1st appeal which is

just an opportunity provided to the public authority to correct any mistakes of its own subordinate staff. And last but not the least the Chief Justice of India, the final authority on interpretation of any law in this country, has been reported as claiming that his office is out of purview of the RTI Act!

Before concluding, here are some quotes:

When we transformed from subjects to citizens, we forfeited our rights it seems, since what happens in our country now in the name of law is often rank injustice. - 'Human rights, the genesis of justice is from religion', 'Faith line' by Renuka Narayanan, The New Indian Express, 20 Dec 2004

In India, everybody knows that as far as the legal system is concerned, the process is part of the punishment.- ArundhatiRoy,7/3/02; http://www.narmada.org/sc.contempt/aroy.stmt.mar7.2002.html

Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment.- 'How long before justice comes?' by HD Shourie, The New Indian Express, 04 Dec 2004

For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also themore costly), will invariably win.- Fali S Nariman in his book 'India's Legal system: Can it be saved?

Justice is an intrinsic human need. We suffer much privation but we cannot suffer being wronged. Absence of justice, we must not forget, is one of the causes of crime. -'Needed high speed legal redressal'- Aravind Kumar, Jurist and lawyer, Pioneer, Kochi, 01 Aug 2006

…but unusual situations which pervert the judicial system require unusual and unorthodox remedies. -Eminent jurist H.M.Seervai in his book, Constitutional Law of India.

I know of no safe depository of the ultimate powers of the society but the people themselves. And if we think them not enlightened enough to exercise their control with a wholesome discourse, the remedy is not to take it away from them but to inform their discretion-Jefferson

The Nazis first came for the Jews and I did not react because I was not a Jew. They then came for the communists, and I did not speak because I was not a communist. And then they came for me, but by then there was no one left to speak for anyone else.

The ONLY thing needed for the success of evil is for GOOD men to do nothing.

Satyameva Jayathe!

Please support the online petition, addressed to the Hon'ble President and PM of India to constitute a National Judicial Commission to try and punish guilty judges as per laws applicable to ordinary citizens, at http://www.petitiononline.com/jrandac1/petition.html